Abstract

http://ssrn.com/abstract=1594261
 
 

Footnotes (234)



 


 



The Modern History of Probable Cause


Wes Oliver


Widener University - School of Law

April 22, 2010

Widener Law School Legal Studies Research Paper No. 10-12

Abstract:     
It is frequently assumed that probable cause, roughly as we understand it today, has, since time immemorial, been the standard allowing an officer to search or arrest. The reality is that probable cause has change a lot since the Bill of Rights was drafted. In the mid-nineteenth century, probable cause was no more than a pleading requirement in criminal cases -- and never have been more than a pleading requirement in criminal cases. Victims of crimes alone were able to seek arrest or search warrants by swearing that they had suffered an injury and that they had probable cause to believe that the person identified committed the crime, or that evidence of the crime could be discovered in the place identified. The victim did not describe the factual basis of his suspicion. Probable cause as a pleading requirement for victims became inconsistent with late nineteenth century social regulations. In the latter half of the nineteenth century, states and the federal government created and punish victimless crimes. Prohibition, pornography and prostitution became targets of new government regulations. These new crimes required a mechanism to allow government searches and arrests without a victim's complaint. At the same time, professional police departments were emerging in American cities. This article accounts for the evolution of probable cause from the early nineteenth century pleading requirement to the modern evidentiary threshold requirment by looking at policing in New York City in the second half of the nineteenth century. While modern social regulations required a standard that public investigators could satisfy, distrust of the police prevented allowing police to simply plead probable cause as victims had done. A standard requiring police to offer facts supporting probable cause was thus born.

Number of Pages in PDF File: 70

Keywords: probable cause, bill of rights, pleading requirement, New York city police

JEL Classification: K1, K4, K14

working papers series





Download This Paper

Date posted: April 25, 2010 ; Last revised: September 3, 2010

Suggested Citation

Oliver, Wes, The Modern History of Probable Cause (April 22, 2010). Widener Law School Legal Studies Research Paper No. 10-12. Available at SSRN: http://ssrn.com/abstract=1594261 or http://dx.doi.org/10.2139/ssrn.1594261

Contact Information

Wes Oliver (Contact Author)
Widener University - School of Law ( email )
4601 Concord Pike
P.O. Box 7286
Wilmington, DE 19803-0474
United States
Feedback to SSRN


Paper statistics
Abstract Views: 1,334
Downloads: 196
Download Rank: 93,180
Footnotes:  234

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo5 in 0.312 seconds